Churchill v. Skjerding

• Decision Date: 11 May 1993
• Docket Number: No. 11253,11253
• Citation: 31 Conn.App. 247,624 A.2d 900
• Court: Connecticut Court of Appeals
• Parties: Alexander CHURCHILL et al. v. Helen SKJERDING, Executrix (ESTATE OF Eva CHURCHELOW), et al.

Page 900

624 A.2d 900

31 Conn.App. 247

Alexander CHURCHILL et al. v. Helen SKJERDING, Executrix (ESTATE OF Eva CHURCHELOW), et al.

No. 11253.

Appellate Court of Connecticut.

Argued Jan. 6, 1993.

Decided May 11, 1993.

Irving H. Perlmutter, New Haven, for appellants (named defendant et al.).

Frederic E. Mascolo, Waterbury, and Deborah M. DelBuono, Wolcott, for appellees (plaintiffs).

Before LANDAU, HEIMAN and SCHALLER, JJ.

SCHALLER, Judge.

The defendants appeal from a judgment for the plaintiffs, rendered after a jury trial, determining in effect that the document offered by the defendants for probate as the last will and testament of Eva Churchelow is not her last will and testament. The defendants, who are the proponents of the will, had prevailed in the Probate Court for the district of Waterbury where the document had been admitted. ¹ From this decision, the plaintiffs, the children of Eva Churchelow's deceased son, who are among her heirs-at-law, took an appeal to the Superior Court. A jury trial resulted in a general verdict for the plaintiffs, which was accepted by the trial court. The defendants claim that the trial court improperly (1) admitted into evidence the testimony of Anna Dobensky and Patricia Ann Senich as expert witnesses without adequate foundation, (2) refused to set aside the verdict as being the result of partiality on the part of the jury in accepting the testimony of handwriting experts in the face of the testimony of execution eyewitnesses offered by the defendants, (3) permitted the jury to consider undue influence in the absence of evidence on that issue, and (4) permitted the jury to consider lack of testamentary capacity in the absence of evidence on that issue. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The decedent, Eva Churchelow, died on April 29, 1985. A document dated June 27, 1984, was purported to be her last will and testament. Two witnesses, Phyllis Matten and Pamela Daunis, attested to the will. Attached to the will were two maps on which appeared the decedent's handwritten name.

The parties agreed that three documents, unrelated to the will at issue, each bore the signature of the decedent. A comparison of the signatures on these documents with those appearing on the will and the maps revealed numerous discrepancies. For example, the signature on the will differed considerably from the signatures on the three documents in terms of the types of strokes used and the slants inherent in the writing. Thus, because the signature on the will was different from that appearing on the three documents and because the parties stipulated that the three documents contained the authentic signature of the decedent, the will could not have borne the decedent's true signature.

The defendants filed an application in the Probate Court requesting administration of the will. After the Probate Court admitted the will to probate, the plaintiffs appealed the decision of the Probate Court to the Superior Court asserting various theories regarding the invalidity of the will. The case was tried to a jury which returned a verdict for the plaintiffs. The defendants filed a motion to set aside the verdict which the court denied. This appeal followed.

I

The defendants claim that the trial court improperly admitted into evidence the testimony of two handwriting analysts, Anna Dobensky and Patricia Ann Senich. We disagree.

"The trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the error is clear and involves a misconception of the law, its ruling will not be disturbed." State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976). "Expert testimony is admissible if the witness possesses a special skill or knowledge directly applicable to a matter in issue, the skill or knowledge is not commonly shared by the average person, and the testimony would be helpful to the court or jury in considering the issues...." State v. Hasan, 205 Conn. 485, 488, 534 A.2d 877 (1987).

The issue was whether the will of Churchelow was executed pursuant to the statutory requirements. ² The plaintiffs contended that the signature on the will was not that of Churchelow. Under these circumstances, testimony from an expert qualified to analyze handwriting is helpful to the jury in determining the authenticity of the signature in question. Id.

At trial, the plaintiffs called Dobensky and Senich as expert witnesses. They testified to their training and experience in the area of handwriting analysis. The trial court, itself, questioned both witnesses regarding their past experiences as expert witnesses testifying in court. Both witnesses stated that they had previously testified in court with respect to signatures on wills. On the basis of the testimony concerning qualifications, the court determined that their expert testimony was admissible. We conclude that the trial court acted within its discretion in admitting the testimony of these two expert witnesses. ³

II

The defendants next claim that the evidence was insufficient to support a verdict for the plaintiffs. This claim, in essence, challenges the trial court's denial of the defendants' motion to set aside the verdict. "When reviewing the action of the trial court, we consider the evidence in the light most favorable to sustaining the judgment. Munson v. United Technologies Corporation, 28 Conn.App. 184, 191, 609 A.2d 1066 (1992). 'A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in [a verdict for the defendants] ... or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.... When a jury has returned a verdict and the trial court has refused to set it aside, [t]he court's decision will be upheld on appeal if, from the evidence presented, the jury could reasonably have concluded as it did.' (Citations omitted; internal quotation marks omitted.) Hall v. Winfrey, 27 Conn.App. 154, 157-58, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992); Boehm v. Kish, 201 Conn. 385, 388-89, 517 A.2d 624 (1986)." Torres v. Waterbury, 30 Conn.App. 620, 622-23, 621 A.2d 764 (1993).

The proponents of a will bear the burden of proof as to due execution. Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991); Berkeley v. Berkeley, 152 Conn. 398, 401, 207 A.2d 579 (1965). A prima facie case of due execution may be established by calling to the witness stand the available attesting witnesses. Shulman v. Shulman, 150 Conn. 651, 656, 193...